Federal Court of Australia

Mullaney v Qube Ports Pty Ltd [2026] FCA 955

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    This is an appeal from orders made upon delivery of Mullaney v Qube Ports Pty Ltd [2025] FedCFamC2G 1784 (PJ). The primary judge dismissed the appellant’s claim that the first respondent (Qube) had contravened the Disability Discrimination Act 1992 (Cth) (DDA) by terminating his employment as a stevedore at Port Kembla.

2    The background facts are comprehensively set out in the PJ. Repeating them at any length would be superfluous, and a summary will suffice for present purposes.

3    The appellant, Mr Mullaney, was employed by Qube for many years. Following workplace injuries sustained in 2017 and 2019, he returned to work pursuant to various return-to-work arrangements and, for a lengthy period, was not required to perform so-called “lashing duties”. In September 2021, after his treating doctor certified him fit to resume pre-injury duties, he was allocated lashing work. He raised an objection to that allocation, complaining to his manager that he no longer possessed the skills to perform such work. Qube then directed him to be examined by an occupational physician specialist, Dr Reza Sabetghadam. Following the doctor’s assessment, and a subsequent review process, Qube concluded that Mr Mullaney could not safely perform the inherent requirements of the position of stevedore and terminated his employment in June 2022: PJ [1]–[4].

4    Mr Mullaney decided to commence proceedings claiming that he had a “disability” within the meaning of s 4(1) of the DDA (in that Qube imputed to him certain qualities); that Qube discriminated against him within the meaning of s 5(1) of the DDA by dismissing him from his employment; and that Qube discriminated against him within the meaning of s 5(2) of the DDA by failing to make reasonable adjustments that would have satisfied Qube that he could safely perform his role, despite the disability Qube imputed to him.

5    In response, Qube admitted that Mr Mullaney had a disability as disclosed by Dr Sabetghadam, and claimed that, because of that disability, Mr Mullaney was unable to carry out the inherent requirements of his role as stevedore. Qube otherwise denied that in dismissing Mr Mullaney, it unlawfully discriminated against him: PJ [5]–[7].

6    As the primary judge observed, an essential element of s 5(1) of the DDA is that the person with a disability (that is, “the aggrieved person”) has been treated “less favourably”: PJ [112]. Whether a person has been treated less favourably requires construction of a “notional person” against which the treatment of the aggrieved person can be compared. Such notional person is often referred to as the “comparator”: PJ [112].

7    This appeal concerns the primary judge’s consideration of the appropriate comparator for the purposes of determining whether Qube discriminated against Mr Mullaney. Notably, of course, how the appropriate comparator is to be constructed was considered by the High Court in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92. There was much discussion of Purvis (and subsequent authorities applying that case) in submissions, but as I will explain, when properly examined, this appeal turns upon how the case of the appellant was run below and not upon any point of legal principle.

B    THE PRIMARY JUDGE’S REASONING

8    The primary judge identified three principal issues: first, whether Qube imputed a disability to Mr Mullaney; secondly, and assuming an affirmative answer to the first, whether Qube, by dismissing Mr Mullaney from his employment, discriminated against Mr Mullaney within the meaning of ss 5(1) or 5(2) of the DDA; and thirdly, if discrimination were established, whether Mr Mullaney was unable to carry out the inherent requirements of the role of stevedore because of the disability: PJ [8].

9    A critical feature of the reasoning was the primary judge’s identification of the disability ultimately relied upon by Mr Mullaney. Despite an attempt by counsel briefed on appeal to, in effect, revert back to the way the alleged disability was originally pleaded, in circumstances described below, Mr Mullaney had expressly reformulated his allegation of disability to assert that Qube had imputed to him that he suffered “from degenerative changes to his back, shoulders and knees which prevented him from performing the occupational requirements of his role”: PJ [5(a)], [132]–[134]. The primary judge accepted that Mr Mullaney’s formulation at the hearing sufficiently identified a “disability” and proceeded to consider the question whether Qube had imputed to Mr Mullaney that condition, which his Honour answered in the affirmative: PJ [132]–[134].

10    In considering the first type of unlawful discrimination, the primary judge considered the reasoning of the plurality in Purvis, which held that it is necessary to identify the circumstances in which the alleged discriminator acted before undertaking the comparison required by s 5(1): PJ [112]–[114].

11    The determinative reasoning of the primary judge appears at PJ [138]–[139]. His Honour understood Purvis as requiring two tasks to be undertaken: first, to identify the conduct Qube engaged in towards Mr Mullaney, namely, dismissing him from his employment, and all of the objective features that surrounded Qube’s conduct; and secondly, to consider what Qube would have done if a person in the same circumstances as Mr Mullaney were imputed with not being able to perform the occupational requirements of his role, but who was not imputed with a disability.

12    As to the first, the primary judge concluded that it would be “artificial” to exclude from that consideration some of those circumstances only because they are identified as being connected with Mr Mullaney’s imputed disability, including an inability to perform “the occupational requirements of his role”. As to the second, given his Honour’s finding that Qube would have decided to terminate the employment of a person who was not imputed with the disability Qube imputed to Mr Mullaney, but who was imputed with the inability to perform the requirements of his role, Qube did not treat Mr Mullaney less favourably than it would have treated a person without the disability Qube imputed to Mr Mullaney.

13    Having undertaken that comparison, the primary judge concluded that Mr Mullaney had not established discrimination within the meaning of s 5(1). His Honour also determined that Mr Mullaney failed in relation to the reasonable adjustments claim, and the application was dismissed.

C    THE GROUNDS OF APPEAL

14    Two grounds were pressed and each challenges the comparator analysis undertaken by the primary judge.

15    In substance, Mr Mullaney contends that the primary judge erred by incorporating into the comparator exercise part of the very matter which Qube had allegedly imputed to Mr Mullaney, namely an inability to perform the occupational requirements of the role. It is said that, by doing so, his Honour transformed the comparator exercise into a circular inquiry and effectively predetermined the outcome of the discrimination analysis.

16    Ground One alleges that the comparator identified and applied by the primary judge was legally erroneous. Ground Two alleges that his Honour failed properly to consider all of the objective circumstances relevant to the comparison required by s 5(1).

17    Although expressed separately, both grounds raise substantially the same issue: whether, in a case involving an imputed disability, the primary judge erred by retaining, in the circumstances of comparison, the work-capacity consequence by reference to which the alleged imputed disability was ultimately formulated below.

D    THE APPELLANT’S SUBMISSIONS

18    Purvis establishes that the operation of s 5(1) requires a comparison between the treatment afforded to the person with the disability and the treatment that would have been afforded to a person without the disability in circumstances that are the same or not materially different: Purvis (at 160–161 [223]–[224] per Gummow, Hayne and Heydon JJ). Mr Mullaney submits that Purvis requires that attention be directed to the actual circumstances of treatment and that the comparison must be undertaken having regard to all the objective features surrounding the impugned conduct.

19    Mr Mullaney’s complaint is not that the primary judge considered the circumstances surrounding the dismissal; rather, it is that his Honour misidentified those circumstances and, in doing so, failed to distinguish between objective circumstances and subjective evaluations of those circumstances.

20    Mr Mullaney submits that there was a substantial body of objective material before Qube at the time it embarked upon the process which culminated in Mr Mullaney’s dismissal. That material included Mr Mullaney’s lengthy employment history as a stevedore, the injuries sustained in 2017 and 2019, the return-to-work arrangements which had operated over several years, the fact that he had worked for lengthy periods without undertaking lashing duties, the qualifications and competencies recorded within Qube’s systems, the certificates of capacity obtained from his treating practitioners, the medical reports obtained by Qube, the concerns raised by Mr Mullaney in September 2021 concerning lashing work and the various assessments subsequently undertaken. These matters, it is said, constituted the objective circumstances that Purvis required to be identified and considered.

21    Emphasis is placed upon the findings made by the primary judge concerning the medical evidence. Mr Mullaney notes that the primary judge found that Dr Sabetghadam did not express the opinion that Mr Mullaney lacked the power, ability or possibility of returning to his pre-injury stevedoring duties (and, indeed, the true effect of Dr Sabetghadam’s opinion was to the contrary); that aspects of the doctor’s opinions were expressed in terms of possible risk; that certain conclusions were qualified by the absence of investigation results; and that the reports did not unequivocally establish the significant degenerative conditions later asserted by Qube.

22    Mr Mullaney submits that those findings are central because they demonstrate that the proposition that Mr Mullaney could not safely perform the occupational requirements of the role was not itself an objective fact. Rather, it was a conclusion reached by Qube after considering the information available to it. According to Mr Mullaney, the primary judge failed to maintain this important distinction.

23    Mr Mullaney submits that such an approach is inconsistent with Purvis and also the decision of the Full Court in State of New South Wales – Sydney Trains v Annovazzi [2024] FCAFC 120; (2024) 425 ALR 272 (per Bromwich, Raper and Shariff JJ).

24    At [149], and after considering Purvis, the Full Court in Annovazzi explained that the function of the comparator is to assist in isolating the reason why the person was treated as he or she was. In undertaking that task, the relevant factors are the “actual circumstances”, being all of the objective features surrounding the actual or intended treatment of the person with the disability by the discriminator. As the Full Court noted, the application of these considerations will always be fact dependent, and one must bear in mind that the “central question will always be — why was the aggrieved person treated as he or she was?”.

25    Mr Mullaney submits that the critical error appears in PJ [139], where the primary judge concluded that the appropriate comparison required consideration of a person who was not imputed with a disability, but who was nevertheless imputed with not being able to perform the occupational requirements of the role. It is said that this formulation impermissibly incorporates into the comparator the very belief or assumption which was said to have produced the discriminatory treatment. The comparison therefore ceases to perform any meaningful analytical function.

26    Mr Mullaney further submits that the primary judge’s reliance upon Purvis overlooks a critical distinction between that case and the present appeal.

27    In Purvis, the conduct relied upon by the school authorities consisted of objectively observable behaviour. There was no dispute that the conduct had occurred. The question was whether that conduct, notwithstanding its connexion with the student’s disability, formed part of the circumstances to be taken into account in the comparison.

28    Here, the proposition that Mr Mullaney could not safely perform the occupational requirements of the role was not an objective circumstance analogous to the conduct considered in Purvis and the primary judge erred by treating a disputed evaluative conclusion as though it occupied the same position as objectively observable conduct.

29    Following the hearing, Mr Mullaney further submitted that the primary judge’s reasoning proceeded upon an impermissibly broad understanding of what may constitute a manifestation of a disability for the purposes of s 4(1) of the DDA. Mr Mullaney submitted that the statutory concept of manifestation is directed to behaviour or attributes sufficiently connected with the disability itself and does not extend to every evaluative conclusion drawn by a decision-maker concerning the practical implications of the disability.

30    In that regard, Mr Mullaney submitted that Qube’s conclusion that Mr Mullaney was unable to perform the occupational requirements of the role was not itself a manifestation of any disability, but a subjective assessment made by Qube based upon its interpretation of the medical material available to it. Emphasis was again placed upon the findings made by the primary judge concerning the content and limitations of what was described as the “Sabetghadam Report” and “Supplementary Sabetghadam Report”. It was submitted that the proposition that Mr Mullaney could not safely perform the occupational requirements of the role was not established by objective medical evidence and therefore could not properly be characterised as a manifestation of the disability said to have been imputed to him.

31    Mr Mullaney submitted that, if the inability to perform the occupational requirements of the role were treated as inseparable from the imputed disability itself, the comparator exercise required by s 5(1) would be distorted. As noted above, Mr Mullaney contended that the inability to perform the occupational requirements of the role could not simultaneously constitute part of the disability relied upon for the purposes of s 4(1) and remain embedded within the comparator after the disability had notionally been removed.

32    Mr Mullaney further submits that this error is reinforced by the structure of the DDA itself. In this regard, particular reliance is placed upon the relationship between s 5(1) and s 21A, and upon the proposition that Parliament has established distinct inquiries. The first inquiry concerns whether the employee has been treated less favourably than a comparator without the disability; the second inquiry concerns whether, notwithstanding that discrimination, the employer can rely upon the inherent requirements exception. The primary judge’s approach, it is said, effectively collapses those inquiries into one another and means that cases of the present kind will invariably fail at the comparator stage.

E    CONSIDERATION

33    The submissions advanced on behalf of Mr Mullaney were carefully and skilfully developed and, at first glance, might conceivably raise a point of some conceptual difficulty; but in my view, Mr Mullaney’s argument has two problems: first, it attempts to recast the disability case that was run below; and secondly, tends to overcomplicate the role performed by the comparator.

34    The first point is developed below, but as to the second, it is necessary to recall that the comparator is not an end in itself: its purpose is logically subsequent to the identification of the disability asserted and to assist in answering the statutory question posed by s 5(1) of the DDA by facilitating the isolation of the reason why the person was treated as they were: Annovazzi (at 311 [136] per Bromwich, Raper and Shariff JJ, citing Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 (at 277 [242] per Mortimer J)). However, and without downplaying the importance of the comparator, care must be taken not to allow debates concerning the formulation of the comparator to distract attention from the language of the statute itself.

35    Section 5(1) of the DDA was in the following terms at the material time:

5  Direct disability discrimination

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

(Emphasis in original).

36    As noted above, the “central question” that arises will always be: why was the aggrieved person treated as he or she was?

37    The present issue is whether the primary judge undertook the task required by s 5(1) when regard is had to how the case was articulated. It follows that the starting point must be the way the case was presented to the primary judge and, in particular, how the disability alleged by Mr Mullaney was formulated at the hearing.

38    In the amended statement of claim, Mr Mullaney initially alleged that Qube imputed to him a disability within the meaning of s 4 of the DDA, which was framed “as a total or partial loss of a part of the body, namely the knee and shoulder”. Paragraph 42 of the defence admitted that Mr Mullaney had a disability for the purposes of the DDA, but averred that disability was as disclosed in the Sabetghadam reports, and alleged that because of that disability he was unable to carry out the inherent requirements of his role as a stevedore.

39    Despite this initial joinder of issue, it is not and cannot be in dispute that the case evolved and Mr Mullaney’s asserted disability did not remain as articulated by the pleadings.

40    As the primary judge explained at [132], in written opening submissions, Mr Mullaney contended that his imputed disability arose from Qube’s assertions in correspondence that it presumed he suffered:

from degenerative changes to his back, shoulders and knees which prevented him from performing the occupational requirements of his role.

(Emphasis added).

41    Hence the case was no longer being advanced merely by reference to degenerative changes affecting the back, shoulders and knees; as ultimately put, the alleged imputation included the consequence that Mr Mullaney could not perform the occupational requirements of his role.

42    The significance of the shift in Mr Mullaney’s case was recognised by the primary judge. His Honour observed (at [132]):

This sufficiently identifies a disability within the meaning of s 4(1)(a), namely, the imputed ‘partial loss of the person’s bodily … functions’.

43    It is important to appreciate the consequence of that formulation. It is why, at [134], the primary judge identified the question for determination in the following way:

The question is whether Qube imputed the disability Mr Mullaney, in his written submissions, submits it imputed to him, namely, that Mr Mullaney suffered ‘from degenerative changes to his back, shoulders and knees which prevented him from performing the occupational requirements of his role’.

44    This approach did not disclose error. This can be seen by adapting the terms of s 5(1) (see [35] above) to the disability as articulated:

[Qube] discriminates against [Mr Mullaney] on the ground of a disability of [Mr Mullaney] if, because of [the imputed disability of degenerative changes to his back, shoulders and knees which prevented him from performing the occupational requirements of his role], Qube treats, or proposes to treat, Mr Mullaney less favourably than [Qube] would treat a person without [the imputed disability of degenerative changes to their back, shoulders and knees which prevented them from performing the occupational requirements of their role] in circumstances that are not materially different.

45    As the primary judge recorded at PJ [132]:

…at the hearing, Mr Mullaney did not conduct his case on the basis that his disability was constituted by the total or partial loss of his body, namely, his knee and shoulder… Mr Mullaney says that Qube’s correspondence shows it presumed Mr Mullaney suffered “from degenerative changes to his back, shoulders and knees which prevented him from performing the occupational requirements of his role”, and that “[s]uch a loss of bodily functions amounts to a “disability” as that terms [sic] is defined in s 4 of the” DD Act. This sufficiently identifies a disability within the meaning of s 4(1)(a), namely, the imputed “partial loss of the person’s bodily . . . functions”.

46    Even leaving aside that this was precisely the way Mr Mullaney asked the primary judge to decide the case below (and the reality that this case cannot now be departed from upon appeal), there was no legal error in approaching the statutory conception of disability as potentially extending beyond an underlying physical or mental condition itself. As observed above, the primary judge set out the statutory definition of disability in s 4(1) of the DDA (at PJ [110]), which provides that a relevant disability “includes behaviour that is a symptom or manifestation of the disability”.

47    It is unnecessary for present purposes to determine in the abstract the outer limits of the concept of a “symptom or manifestation” in s 4(1). Mr Mullaney’s post-hearing submissions correctly emphasised that not every consequence of a disability, nor every evaluative conclusion drawn by a decision-maker concerning a disability, will necessarily constitute a symptom or manifestation of the disability. But the present issue does not arise in an abstract setting. The question is not whether, as a general proposition, an incapacity for work necessarily constitutes a manifestation of an underlying physical disability, nor whether Qube’s assessment of Mr Mullaney's capacity was objectively correct.

48    The authorities relied upon in the post-hearing submissions concerning the circumstances in which a consequence may properly be characterised as a manifestation do not answer the anterior difficulty created by how Mr Mullaney’s own case was advanced. At the risk of repetition, the asserted inability to perform the occupational requirements of the role was not, as Mr Mullaney now seeks to argue on appeal, introduced by the primary judge as a new, free-standing circumstance. Separating the physical aspects of the disability from its manifestation by repeatedly characterising the inability to perform the occupational requirements of the role as no more than Qube’s “subjective assessment” was not the way the case was run below.

49    Of course, whether Qube’s imputation was correct is another question entirely. What matters is that the circumstance that Qube acted upon a particular imputation is capable of identification even though the underlying correctness of the imputation remains disputed.

50    The primary judge reasoned at PJ [138] that the first task required by Purvis was:

… to identify the conduct Qube engaged in towards Mr Mullaney, namely, dismissing him from his employment, and all of the objective features that surrounded Qube’s conduct.

51    His Honour then stated:

It would be artificial to exclude from that consideration some of those circumstances only because they are identified as being connected with Mr Mullaney’s imputed disability.

52    His Honour’s application of that principle is evident from PJ [139]. There his Honour asked what Qube would have done had a person been in the same circumstances as Mr Mullaney, but without the disability as imputed. Unsurprisingly, his Honour accepted the relevantly unchallenged evidence of a Qube witness, Mr Toohey, that any employee requiring the same permanent restrictions would have been treated in the same way.

53    The primary judge did not fall into error by retaining, in the circumstances of comparison, the work-capacity consequence given the alleged imputed disability. If an aspect of the asserted disability was stripped from the comparator analysis, this would distort the task demanded by the text of the statute.

54    That is why the primary judge regarded the proposed exclusion, not unfairly, as “artificial”. His Honour was entitled, indeed required, to analyse the discrimination claim by reference to the case as it was ultimately put.

55    A related aspect of Mr Mullaney’s argument was that a circumstance can never be relevant to the comparative exercise if it depends upon the perception or belief of the alleged discriminator. I do not accept that premise. In an imputed disability case, the existence and content of the alleged imputation are themselves ascertainable facts about the circumstances in which the alleged discriminator acted. In a case of imputed disability, the statutory inquiry necessarily proceeds by reference to the disability which was imputed, whether or not the aggrieved person in fact possessed that disability; otherwise the statutory extension of the concept of disability to an imputed disability would have no coherent operation.

56    Recognising this is important because it demonstrates that the present appeal is not really concerned with whether objective circumstances may be taken into account. All parties accept that they must be. The real controversy concerns whether Mr Mullaney could rely upon the inability to perform the occupational requirements of the role as part of the disability for the purpose of establishing the existence of an imputed disability under s 4(1), while simultaneously excluding that same feature from the circumstances to be considered when undertaking the comparison required by s 5(1).

57    As the primary judge explained at PJ [114]–[115], the plurality in Purvis held that the comparison required by s 5(1) is undertaken by identifying the circumstances in which the aggrieved person was treated and then asking how a person without the disability would have been treated in circumstances that were the same or not materially different. The plurality, of course, referred to “all of the objective features which surround the actual or intended treatment” of the aggrieved person.

58    I accept the force of Mr Mullaney’s submission that an evaluative conclusion reached by an employer should not be elevated into an objective circumstance merely because the employer acted upon it. But here, as I have explained, an aspect of Mr Mullaney’s identified disability based on Qube’s belief was not some extraneous evaluative conclusion or adjectival fact.

59    I do not accept Mr Mullaney’s submission that this approach deprives s 21A of meaningful work. Parliament has chosen to make discrimination the threshold question. Section 21A becomes relevant only if discrimination is first established. There is nothing anomalous in a claim failing at the first stage if the comparison required by s 5(1) reveals no less favourable treatment. Nothing in these reasons should be taken as suggesting that every case involving an imputed disability and a perceived incapacity will necessarily fail at the comparator stage. Section 21A remains a distinct and important provision where discrimination is otherwise established and the respondent seeks to rely upon the inherent requirements exception.

60    Finally, I do not accept Mr Mullaney’s alternative submission that the primary judge fell into error by failing to identify the objective circumstances.

61    Mr Mullaney pointed to the qualifications contained in the Sabetghadam reports, Mr Mullaney’s work history, the earlier performance of duties without lashing work, the certificates of capacity and the functional capacity evaluation. Those matters may have been relevant to whether Qube’s assessment was correct or to whether the inherent requirements exception could ultimately be established. But that was not the determinative issue given the forensic decision made as to how the disability case was put below. Nor did the evidence concerning other employees who were rarely or never rostered to perform lashing undermine his Honour’s conclusion, given the different premise upon which the comparison was undertaken and the evidence accepted by his Honour as to the treatment of an employee subject to the permanent restrictions attributed to Mr Mullaney.

62    The primary judge plainly understood that factual matrix. Indeed, many of the matters now relied upon by Mr Mullaney depend upon findings his Honour made earlier in the judgment. The real question is whether the primary judge was required to exclude from his consideration a circumstance which was an aspect of the disability as framed by Mr Mullaney. I have already explained that his Honour was not required to do so.

63    Grounds One and Two should be rejected and the appeal must be dismissed. I have not been addressed on the issue of costs, and will hear from the parties.

Associate:

Dated: 22 July 2026